Discussion On Some Legal Questions About The Duty Crime's Recognition In The Process Of The Reform Of The State-owned Enterprise System

With the unceasingly reform of our country's state-owned enterprise,the problem that some illegal ones use this chance to commit duty crimesarises more and more social attention, it also brings a task to thecriminal legislation and the criminal judicature. Connected with thetrial practice, this paper emphatically. elaborates on some difficultlegal questions about the duty crime's judicature recognition in theprocess of the reform, the first is the question of the crime subjectrecognition. There are different opinions about what the state-ownedenterprise is between the practical field and the theoretical field. Thispaper advocates the "entire state-owned capital said" standing on thebasis of the existing legal frame. In order to correctly identify thenature of the enterprise and the status of the criminal, this paper alsocarries on an analysis about the influence of the defect of theshareholder's investment, the significance in the criminal law of theenterprise registration, the time limit of the complement of theenterprises' reform, and the establishment of the delegate's status. Thesecond is the question of the crime object. In the traditional criminallaw theory, the object of the property crime requests the determinism,the feasibility and the independent existence. But the criminal oftenconceals the creditor's rights of the enterprise by the opportunity ofthe system reform, embezzles the state-owned stockholder's rights, holds the real estate illegally, which propose a new challenge to thetraditional criminal law theory. On the basis of the further distinctionbetween the public property and the public belongings, the state-ownedcapital and the state-owned property, this paper tries go discuss whetherthe object of the property duty crime should include the enterprise'screditor's rights, the state-owned stockholder's rights, as well as thequestion of the real estate and gave an affirmation comment. The thirdis the question of the crime amount recognition. In practice, there aretwo different opinions about the recognizes of the crime amount possessedby the new enterprise when the criminal conceals the property to reformby the chance of it, one is entire recognition, the other is calculatingthe crime amount according to the investment ratio in the new enterpriseof the criminal. This paper advocates "entire recognition". How torecognize the crime amount of embezzling the property of the state-ownedenterprises? This paper advocates the entire recognition proceeding fromthe legal basis, the theory basis and the practice foundation. Then, howto recognize the crime amount of embezzling the stock, this paperadvocates to comprehensively consider the two essential factors of crimetime and the criterion of the crime amount. And it tries to propose apattern of recognition of the amount. The fourth is some other questions.For example, the new enterprise's behavior of possession after concealingthe state-owned property and turning to reform, can be recognized to havethe attention of"illegal holds" and be defined as corruption. This paperalso stands for the "actual control said" on the standard of theaccomplishment offense of the corruption crime during the enterprise'ssystem reform. In order to help understand the abstractive principle of"actual control" and distinguish different conditions, it suggests thatto recognize the duty crime committed continuously going beyond the reform,we should firstly distinguish different period of the time and then punishsimultaneonsiy for several offenses. And it als(?) suggests make concrete analysis about the various essential factors going beyond the reform bycombining them with the object being violated.